United States v. Bisong
396 U.S. App. D.C. 63
| D.C. Cir. | 2011Background
- Bisong was convicted by jury of seven counts of bank fraud and four counts of immigration fraud based on false ETA-750 forms and counterfeit checks.
- He repeatedly sought to represent himself; the district court conducted Faretta colloquies and ultimately allowed pro se representation with standby counsel Moore.
- The court warned Bisong of the risks of self-representation and the complex nature of the case, but Bisong persisted in wanting to proceed pro se with Moore as standby counsel.
- Trial occurred in June 2003 after lengthy proceedings, with Moore providing assistance and Bisong having access to discovery and evidence through Moore and court orders.
- On remand after Booker, Bisong was resentenced to 159 months; the district court later determined an error in applying a leadership enhancement and remanded for resentencing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Faretta waiver was knowing and intelligent | Bisong contends waiver was involuntary due to delay and lack of repeated advisements | Bisong claims the district court failed to reconfirm voluntary self-representation after time elapsed | Waiver was knowing and intelligent; colloquy adequate |
| Whether Bisong was denied adequate access to discovery for his pro se defense | Bisong asserts he lacked sufficient access to seized records to prepare | Bisong had access via standby counsel and the court facilitated access and extensions | No prejudice shown; access provided and record supports adequate preparation |
| Whether the district court properly applied the leadership enhancement under U.S.S.G. § 3B1.1 | Bisong argues no evidence showed he exercised leadership or supervised five or more participants | Court treated Bisong as organizer/leader based on immigration scheme participants | Leadership enhancement as to bank fraud was error; remand for resentencing |
| Whether the sanctions and enhancements for bank fraud/sophisticated means and multiple victims were proper | Bisong challenges loss, victim count, and sophisticated means enhancements | Court properly applied loss, victims, and sophisticated means based on evidence | Loss, victims, and sophisticated means findings affirmed; remand limited to leadership error |
Key Cases Cited
- Faretta v. California, 422 U.S. 806 (Supreme Court 1975) (Right to self-representation requires knowing, intelligent waiver after adequate colloquy)
- United States v. Bailey, 675 F.2d 1292 (D.C. Cir. 1982) (Faretta waiver advisory guidance and unequivocal assertion of rights)
- United States v. Brown, 823 F.2d 591 (D.C. Cir. 1987) (Colloquy sufficiency depends on record; warnings of risks and procedural caveats)
- United States v. Silkwood, 893 F.2d 245 (10th Cir. 1989) (Guidance on assessing potential sentencing ranges during Faretta proceedings)
- United States v. Hall, 610 F.3d 727 (D.C. Cir. 2010) (Faretta waiver adequacy and evaluating objections to counsel when waiver is questioned)
- United States v. Mathis, 216 F.3d 18 (D.C. Cir. 2000) (Remand for resentencing when leadership enhancement is clearly erroneous)
- United States v. Bapack, 129 F.3d 1320 (D.C. Cir. 1997) (Agency relationships and scope of participation in fraud schemes)
- United States v. Bras, 483 F.3d 103 (D.C. Cir. 2007) (Reasonable estimation of loss for sentencing under § 2B1.1)